Central Administrative Tribunal - Delhi
Shailendra Sharma vs Union Of India Through on 11 May, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Transferred Application No.564/2009 This the 11th day of May, 2010 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Shailendra Sharma, Superintending Engineer (C), CTO Project, BSNL, Janpath, New Delhi. Applicant ( By Ms. Madhu Tewatia with Ms. Sidhi Arora, Advocates ) Versus 1. Union of India through Secretary, Ministry of Communication, Sanchar Bhawan, New Delhi. 2. Bharat Sanchar Nigam Ltd., through Chief Managing Director, Statesman House, Connaught Place, New Delhi. 3. Central Bureau of Investigation through its Director General, ACB, New Delhi. Respondents ( By Shri Sameer Aggarwal, Advocate ) O R D E R Justice V. K. Bali, Chairman:
Shailendra Sharma, Superintending Engineer at the relevant time, the applicant herein, filed WP(C) No.3259/2003 before the Honble High Court of Delhi seeking a writ in the nature of mandamus directing that the recommendation made by CBI for regular departmental action against him be kept in abeyance until the Special Judge, CBI decides the protest petition filed by him against the closure report filed by CBI, which is pending consideration before the Special Judge, CBI, as also for quashing the recommendation made by CBI for regular departmental action against him, and for quashing the sanction granted by the competent authority to the said recommendation for initiating regular departmental action. The matter came up for motion hearing before the High Court on 14.5.2003 when notices were issued to the respondents to show cause as to why rule nisi be not issued. Reversion of the applicant from the post of Superintending Engineer, as by the time he filed the writ petition he was promoted as Superintending Engineer, was stayed. Vide order dated 20.5.2003 enquiry against the applicant was also stayed. The interim protection is continuing till date. The writ petition came to be transferred to this Tribunal vide order dated 16.1.2009 pursuant to notification dated 1.12.2008 issued by the Central Government vesting primary jurisdiction in the matter with this Tribunal, and has been numbered as Transferred Application No.564/2009. On completion of Part B, the matter was ordered to be notified and thus came up for hearing before this Tribunal on 12.1.2010. Arguments in the matter were heard on 6.5.2010 when judgment was reserved.
2. Brief facts on which the reliefs referred to above, as set out in the Application, are sought to rest reveal that the applicant was posted as EE (C-1) in charge of the project work of construction of TE building at Lodi Road with MTNL between the period January, 1995 and 26.2.1996. On 11.1.1996, the then SE(C) Shri Kulbhushan and Shri R. C. Arora, EE (HQ) prepared a notice inviting tender along with detailed estimate duly technically sanctioned by Shri S. B. Lal, then CE (BW) for Rs.1,22,83,000/- for Construction of TE Building (Provision of aluminum doors, windows ventilators and glazing etc.). CE (BW) Shri S. B. Lal and SE (C) directed the applicant to prepare the Market Rate Justification (hereinafter to be referred as MRJ) for the work in question in view of the extant instructions, as contained in clause 2.2 of circular dated 13.6.1995 and clauses 20.11.2 and 20.12.2 of CPWD Manual. The applicant claims to have prepared the MRJ strictly according to the circular dated 13.6.1995. It is the case of the applicant that after the MRJ is prepared by EE(C), the same has to be mandatorily scrutinized by SE(C) in charge, and further that in case the tenders are to be accepted by CGM (MTNL), as in present case, the MRJ so scrutinized by SE(C) has to be finally approved by CE(C), which approval is mandatory in terms of the said circular. The applicant has referred the way and manner he prepared the MRJ, and as per the case set up by him, the MRJ was prepared by him strictly within the parameters of law in accordance with the provisions of CPWD Manual and placed the same in the tender file for mandatory scrutiny and approval of SE(C) and CE(C). Three parties, namely, M/s Precision Metal Industries (PMI), M/s Mahavir Aluminum Ltd. and M/s Alkarma Ltd., had applied for purchase of tender forms. Since M/s Alkarma had applied after expiry of the prescribed period, tenders were sold to M/s PMI and M/s Mahavir Aluminum Ltd. The tender was opened on 17.1.1996 wherein M/s PMI, the lowest bidder quoted rates which were 33.72% above the estimated cost and the difference between the MRJ and the rates quotes was to the tune of 20.38%. M/s MPI had quoted rate of 1 kg. aluminum anodized to 25 microns thickness to be Rs.292/- per kg. against the justified rates of Rs.239.30 per kg. In the aforesaid premises, the applicant concluded that the rates quoted by the lowest bidder were very high and non-competitive. He concluded that the tenders were pooled and that lower rates were positively expected on a recall. The said recommendations were made as only two tenders were sold and received and the rates quoted by the two bidders were very high and non-competitive. He recommended for rejection and recall of the tenders in public interest and in the interest of financial propriety. It is further the case of the applicant that in the light of binding rules, superior officers, including CE(BW), were bound by the recommendation made by him and they could not have overturned or overruled the same. After receiving the recommendations of the applicant for rejection and recall on the ground that the tenders were not competitive, he was transferred out of the said project to Jaipur in February, 1996, before completion of his term, which was of four years, and Shri H. R. Kaushik took over as EE(C) in charge of the project in question. It is the case of the applicant that the said Shri Kaushik entered in a criminal conspiracy to award the tender only to M/s PMI, in furtherance whereof he changed the MRJ prepared by the applicant a fresh MRJ of Rs.245.15 per kg of anodized aluminum 25 microns was prepared by him and the entire MRJ was revised and raised by 9.2%. A fresh MRJ thus came into existence. Shri Kaushik also changed the analysis of item of aluminum, which was the major item costing 73% of estimate to Rs.245.15 per kg. It is the case of the applicant that the said officers were keen on awarding the tender to M/s PMI only at all costs, thereby violating all norms of financial propriety. Even though, the tenders were valid for a period of three months only, yet in this case the tender kept getting extended each month up to August, 1996. As per the case set up by the applicant, this was done in order to keep the negotiations alive for the purpose of allotting the tender to M/s PMI only on inflated rates despite the aforesaid low rates being available on record and very much in the knowledge of the accused persons. The said officers proceeded to award the tender to M/s PMI after getting fresh MRJ prepared by Shri H. R. Kaushik, and after entering into post-tender negotiations with M/s PMI, who after negotiations reduced its rates for aluminum item from Rs.292/- to Rs.275/- per kg. The tender was awarded for a total amount of Rs.1,44,67,122.5 as against the estimated cost of Rs.1,19,25,245/- out of which the cost of aluminum item weighing 40050 kgs alone was Rs.1,10,13,750/-. It is the case of the applicant that the contract was awarded despite the fact that all the aforesaid officials and the CE(BW) Shri S. B. Lal, before the award of tender in question, were well aware of the lower rates of aluminum prevailing in the market, as they had themselves invited further tenders during June-July, 1996 for works which consisted aluminum items wherein different parties had quoted rates ranging between Rs.150/- and Rs.200/- per kg, and that the rate of Rs.200/- per kg had in fact been quoted by M/s PMI which had most shockingly quoted Rs.292/- per kg for the work in question. It is then pleaded that had the applicant continued as EE(C) in charge of the project in question, the tender could not have been awarded to M/s PMI which had resulted in causing wrongful loss to the Government by the accused persons acting dishonestly in contravention of the recommendations for rejection and recall made by the applicant. During the course of arguments, we are told by the learned counsel representing the parties that the applicant himself made a complaint in this matter, even though from the records it appears that on some source information, FIR came to be registered on 4.6.1997 by CBI against Shri Mul Bhushan, SE(C), Shri H. R. Kaushik EE(C) (successor of the applicant), shri R. C. Arora EE (HQ), Shri M. L. Bansal, proprietor of M/s PMI, and Shri M. P. Srivastava of Mahavir Aluminum Ltd., under provisions of Section 120-B IPC read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. The said FIR was recorded on the basis of reliable source information against certain officials and contractors of MTNL for having caused wrongful gain to M/s PMI to the tune of more than Rupees 30 lacs and corresponding loss to MTNL. In connection with the FIR aforesaid, the applicant was examined by CBI on several occasions as a star witness, and the applicant explained that the tender in question was awarded by the accused officials to M/s PMI with the dishonest intention and knowledge to cause wrongful loss to the Government and corresponding gain to M/s PMI. He stated that the accused officers and the CE(BW) had openly flouted rules and procedures in order to award the tender to M/s PMI at all costs. It is the case of the applicant that despite the fact that a clear case of conspiracy to benefit M/s PMI emerged, yet the CBI closed the case. On knowledge of this fact, the applicant met the 3rd respondent and explained the case in detail and got the case re-opened. The applicant states that the second investigation concluded that the MRJ was manipulated and loss had occurred to MTNL but the twist to the whole case was given by the DIG, CBI who discharged the accused persons of the criminal liability in the final report submitted to the Special Judge only for the sake of showing some action taken on file, and recommended regular departmental action against the applicant in order to victimize him for having dared to get the case re-opened. It is the case of the applicant that in the final report, CBI had recommended closure of the case against the accused officials by suppressing material facts, and that out of nowhere and clandestinely the CBI recommended for initiation of regular departmental action for major penalty against the applicant. It is further his case that the CBI after flouting all canons of natural justice and the rules sent the findings to CVC, and it is learnt that the CVC in a mechanical manner has granted concurrence for initiation of major penalty proceedings against the applicant. In the meanwhile, the case of the applicant was referred for technical comments of the department, i.e., civil wing of BSNL, which did not find any fault or lapse on the part of the applicant. That being so, the applicant was promoted on ad hoc basis as Superintending Engineer in July, 2002. On knowledge that the CBI had filed closure report, the applicant filed a protest petition bearing No.M-34/2003 before the court of Special Judge, CBI, praying therein for rejection of the final report of CBI and for taking cognizance of the case by summoning the accused persons for trial with a further request for re-investigation of the entire case. Vide order dated 16.4.2003 the Special Judge issued notice to CBI directing to file reply. The matter is stated to be sub judice. By the time the writ petition was filed, no decision had been taken by the concerned court on the closure report and the protest petition filed by the applicant. The same position persists till date, as it is conceded at all ends that no orders have been passed by the Special Judge on the closure report and the protest petition of the applicant, and the case is being only adjourned from time to time. Meanwhile, the applicant learnt that the competent authority has accorded sanction to the CVC advice and has ignored the technical comments of the technical authority, wherein no fault or lapse has been found on the part of the applicant. The charge sheet, it is stated, is in the process of being issued to the applicant on the recommendation of CBI and if that may happen, the applicant would be reverted for no fault of his.
3. Pursuant to notice issued by the High Court, counter affidavits have been filed on behalf of BSNL as also CBI. While narrating the facts of the case, CBI in its reply has averred that before the opening of the tender the applicant, EE (C-1), prepared the MRJ and submitted it to SE(C-C) on 16.1.1996. In MTNL, the civil works (tender) are executed by and large as per the provisions of CPWD Manual with some minor modifications. For preparation of MRJ, CPWD Manual stipulates the procedure in rule 20.10.11 and rule 20.12.0, and makes it clear that item constituting about 90% of the estimated cost of work should be considered for preparation of MRJ statement, and items to be considered should be so selected which have higher estimated amount and then next lower in the descending order and so on till the fixed percentage of estimated amount, i.e., about 90% is reached. It is pleaded that the investigation revealed that in the MRJ prepared by the applicant the above said guidelines of CPWD Manual were not followed, and that the applicant considered only the item nos. 1, 2, 4, 10 and 11 of the sanctioned estimate and excluded item no.12, which was of higher value than item nos. 10 and 11. It is further pleaded that had the provisions of CPWD Manual been followed correctly, the items should have been considered in the order item no.1 + item no.2 + item no.4 + item no.12, total amounting to Rs.1,14,22,330/-, and that after calculation the applicant arrived at MRJ figure which was 13.71% above the estimated cost. In the contract in question, tenders were opened on 17.1.1996. The applicant subsequently modified his MRJ on 29.1.1996 mentioning therein that there was some ambiguity in the description of EPDM lining shown by their architectural consultant in the drawing no.1, 1A and 1B wherein the profile of EPDM lining to be used for glazing was not correctly mentioned. After making necessary changes, the modified MRJ dated 29.1.1996 was submitted by the applicant and was 8.72% above the estimated cost. It was observed during investigation that for revision the CPWD Manual does not contain any provision and also there was no precedence for this type of revision in MRJ, many days after opening of the tenders. During investigation, it came to notice that the applicant sent his recommendations based on MRJ of 29.1.1996 vide letter dated 30.1.1996 to SE(CC) wherein he mentioned that Against the total justification of 13.34% above the estimated cost put to tender the lowest contractor M/s Precision Metal justification quoted 33.72% above the estimated cost. The difference of 20.38% between justification and quoted rates in tender was on higher side and therefore, the tenders were not competitive. It is recommended that the tenders may be rejected and recalled since lower rates are expected in recall. It is pleaded that the noting of the applicant was factually incorrect to the extent that the revised MRJ was 8.72% above the estimated cost and not 13.34%. In short, it is the case of the respondent CBI that at the end of investigation, following lapses on the part of the applicant were proved:
(i) Miscalculation of MRJ taking very high rates for anodisation which had inflated the amount of MRJ by Rs.11,21,400/-.
(ii) Non-conformation to the provision of CPWD Manual for the preparation of MRJ and exclusion of crucial items for the calculation of MRJ.
(iii) Revision of MRJ without any justification 15 days after opening of tenders.
4. Two replies have been filed on behalf of respondent BSNL one brief and the other detailed, but during the course of arguments, it has not been pointed out as to what would be the difference between the two replies. We have taken the facts as mentioned in the brief reply filed by the said respondent. It has inter alia been pleaded that the investigation disclosed that the MRJ prepared by the applicant, the guidelines contained in CPWD Manual were not followed. The other contents of the reply are in tune with the reply filed on behalf of respondent CBI, already adverted to. It is also pleaded that the rates of items used for calculation of MRJ, CPWD Manual stipulates the procedure, which would make it clear that item constituting about 90% of the estimated cost of work should be considered for preparation of MRJ statement, and items to be considered should be so selected which have higher estimated amount and then next lower in the descending order and so on till the fixed percentage of estimated amount, i.e., about 90% is reached. It is further pleaded that the rates of items used for calculation of MRJ were analysed by the applicant and the statement of experts/dealers of these items were recorded in advantage to the DSR for the relevant period, and it was found that the basic rate of aluminum which was taken as Rs.116/- per kg was appropriate but the rate of anodisation which was taken as Rs.60/- per kg was extremely high and totally unjustified during the relevant period, when the rate of anodisation was only Rs.32/- per kg. The three lapses as mentioned by the CBI in its reply have been reiterated. It is then pleaded that based on the result of investigation, CBI recommended regular departmental action for major penalty against the applicant. The applicant is stated to have caused inflation of MRJ to the tune of Rs.11,21,400/-, which ultimately contributed to award of contract at higher rate.
5. We have heard the learned counsel representing the parties and with their assistance examined the records of the case. Ms. Madhu Tewatia, learned counsel representing the applicant, vehemently contends that the applicant is a whistleblower and it is at his instance that FIR came to be registered against officials of BSNL and others, wherein he was a prime witness, and yet, those who bungled in the matter of awarding contract to M/s PMI have been let off, whereas it is the applicant who is going to be proceeded departmentally. It is also urged that there could not be any question of the applicant contributing to the award of contract at a higher rate, as it is he who had pointed out the rates being on higher side and recommended for calling the tenders afresh, and for rejecting the tender bids made by both the bidders. It is also the contention of the learned counsel that till such time at least the matter is sub judice before the concerned court and the protest petition filed by the applicant against the closure report of CBI is pending, the applicant should not be proceeded departmentally.
6. Per contra, Shri Sameer Aggarwal, would contend that it is too initial and premature a stage for this Tribunal to interfere in the matter; so far, even a memorandum to proceed against the applicant has not been issued, least the chargesheet. The learned counsel also contends that the matter is technical in nature and as to whether the applicant had followed the CPWD Manual or prepared the MRJ in contravention thereof, may not be commented upon by this Tribunal, as the same should be left to experts.
7. We have given our serious thoughts to the contentions raised by the learned counsel for parties as noted above. It is too well settled a proposition of law in service jurisprudence that the Tribunal or Courts should not interfere at initial stage. In the present case, even a memorandum to explain the conduct of the applicant has not been issued. Surely, no chargesheet has also been issued to him. The applicant filed the writ petition only apprehending that a decision had been taken by the respondents to proceed departmentally against him. The matter is indeed a technical one and it would not be proper for this Tribunal to comment upon merits of the controversy, as that is to be left to the experts who may have full knowledge of CPWD Manual and the procedure contained therein. It will be unnecessarily burdening the judgment to refer to the case law. The settled proposition of law is that Courts and Tribunals should not interfere at such premature stage as in the present case. The reliefs asked for by the applicant to quash recommendation of the CBI for initiating regular departmental action as also the sanction granted by the competent authority to the said recommendation, cannot be entertained. Having said so, one stark fact that stares everyone in the face is that it is the applicant who in his MRJ recommended inviting fresh tenders with specific recommendation that the rates quoted by the two bidders were on higher side. In the fact situation as mentioned above, it is difficult to digest as to how the applicant contributed to the award of contract at higher rates. He had, as mentioned above, recommended for cancellation of the bids given by M/s PMI and for recalling the tender bids. The MRJ prepared by him was not found to be correct by his successor and the contract was awarded to M/s PMI, and the finding of CBI is that the rate of anodisation at Rs.60/- per kg was extremely high and totally unjustified. The applicant was clamouring for giving the contract on lower rates. May be, in that connection, he had not correctly mentioned the rate of anodisation, but by no stretch of imagination it can be said that the applicant contributed to award of contract on higher rates. Further it can be said that in preparing MRJ for cancellation of bids, the applicant cannot be said to be acting with some ulterior motive. That is not even the case of the respondents. At the most, the case put up by the respondents is that the applicant had committed three lapses which have been already mentioned above. In the circumstances as mentioned above, it appears to us that it would not be in the interest of justice to proceed against the applicant at least till such time his protest petition is decided by the concerned court seized of the matter. It may be recalled that CBI which proceeded against other persons whereas the applicant was star witness, sent a closure report, which is being examined on the protest made by the applicant. The matter is indeed sub judice. The report of the technical authority is in favour of the applicant. Surely, if the accused arrayed in the FIR are proceeded for regular trial, and if the concerned court seized of the matter may not accept the closure report and instead may accept the protest petition filed by the applicant, it would be travesty of justice to proceed departmentally against the applicant. The matter indeed is sub judice and even though, there may be no bar to proceed departmentally against the applicant even if the accused arrayed in the FIR face criminal charge and trial, the propriety, in the facts and circumstances of this case, demands that the applicant should not be departmentally proceed at this stage. The applicant at least deserves the relief to the extent that till such time the matter is sub judice, he should not be proceeded departmentally, particularly, when it is not even the case of the respondents that while preparing the MRJ, he acted in a mala fide fashion. The only action as emanating even from the CBI report is that he did not strictly follow the CPWD Manual, or that the basic rate of aluminum was mis-worked or miscalculated by him. If perhaps, the matter was being dealt with by the High Court, a direction could have been issued to the concerned court to decide the protest petition expeditiously and in some time-bound manner, but such a direction cannot be given by us. We only hope that the protest petition shall be decided by the concerned court as expeditiously as possible. The same is after all pending for about a period of seven years.
8. With the observations/directions as mentioned above, this Application is disposed of. Costs of the litigation are, however, made easy.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/